Complainant

Respondent

Anonymised Parties

A Complainant

A Civil Servant

Representatives

Sinéad Fitzpatrick, Solicitor of The Office of Parliamentary Legal Advisers

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00042639-001

19/01/2021

The complainant claims he has been discriminated against by a person, organisation, company who provides goods, services or facilities. Specifically, he brings a complaint against a Civil Servant in the Houses of the Oireachtas.

The complainant relies upon the Equal Status Acts to ground his complaint against the respondent who the complainant states is a person, organisation, company who provides goods, services or facilities and that when providing that service he was discriminated on the ground of disability.

The complaint is made against the respondent in their capacity as a Civil Servant in the Houses of the Oireachtas and is against the outcome of an investigation carried out by the respondent into complaints made by the complainant against members of staff of the Houses of the Oireachtas.

The respondent made a written response to the complaint and submitted, among other things, that:

“the Complainant has failed to establish that [the respondent] was providing a good or service as defined under the Act.”

Section 2 of the Equal Status Act 2000 as amended defines a service as:

“ service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

( a) access to and the use of any place,

( b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

( c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

( d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998 ) or a service or facility in relation to which that Act applies;”

Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 states:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

The respondent investigated complaints made by the complainant against members of staff in the Houses of the Oireachtas. These complaints arose from the interaction of the complainant with the Houses of the Oireachtas Joint Committee on Health and the manner in which these interactions were dealt with by Civil Servants. The complainant submitted complaints under the Equal Status Acts to the Workplace Relations Commission against all members of the Committee and the Clerk to the Committee. The complaints against the member of the Committee were dismissed because of the immunity granted by the Constitution to the constitutional business of the Oireachtas. The complainant against the Clerk to the Committee was dismissed because he was dealing with matters closely connected to the constitutional business of the Oireachtas.

This complaint is how the matters closely connected to the constitutional business of the Oireachtas were dealt with. Given the immunity allowed for that it is clear that the investigation carried out by the respondent would not be able to uphold the complaints made by the complainant.

 Section 22 of the Equal Status Act states: “The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious or relates to a trivial matter.” In a decision of the High Court in Patrick Kelly v The Information Commissioner: [2014] IEHC 479: it was stated at paragraph 99:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail. Where a person engages in a pattern of litigation (or applications as in the present instance) which not only come within those descriptions but can be said to be actuated by ill-will or bad faith, such conduct may properly be described as vexatious.”

In another case before the High Court, Flanagan v Kelly (no 1997, no 3832P) Mr Justice O’Sullivan stated that there is satisfactory evidence that “the proceedings are unsustainable in the sense that they must fail. In these circumstances the Court must stay the action.”

I conclude this complaint is bound to fail and is therefore misconceived, as it is incorrectly based in law. I find that I have no jurisdiction to investigate the complaint.

Section 22 of the Equal Status Act 2000 as amended states:

22. — (1) The  Director of the Workplace Relations Commission  may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

I conclude this claim is misconceived as it is incapable of achieving the desired outcome and is not a service as defined under the Act.  I find that I have no jurisdiction to investigate this complaint and I dismiss the complaint in accordance with Section 22 of the Equal Status Acts.

Section 22 of the Equal Status Act 2000 as amended provides for a complaint to be dismissed at any time if an opinion is formed that the complaint is misconceived. As I have formed the opinion that the complaint is misconceived pursuant to section 22, I dismiss the claim and determine that I have no jurisdiction to investigate and adjudicate on the matter.

Claim dismissed misconceived – not a service – Oireachtas immunity – No Jurisdiction